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Document Type

Article

Publication Date

2-15-2018

Publication Citation

25 Indiana Journal of Global Legal Studies 331 (2018)

Abstract

This article argues that the public-private distinction is essential for safeguarding individual autonomy and democracy. As the article shows at the example of sovereign debt restructuring, global governance has blurred the distinction between public and private actors, instruments, and processes, and this causes immediate risks for human rights and democracy. This raises the question how the public-private distinction can be maintained under the structural conditions of global governance. For that purpose, the article ventures to propose a definition of publicness for global governance inspired by discourse theory. It argues that whenever a community, defined by the prevalence of communicative action, exercises authority over its members, there is an act of public authority that needs to respect standards of human rights protection and democratic self-determination. The article applies this framework to sovereign debt restructuring and identifies exercises of public authority in current sovereign debt restructuring practice, which need to, but often do not, meet these standards. The public-private distinction is thus an important tool for criticizing global governance.

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